People v. Santos

JUSTICE FREEMAN

delivered the opinion of the court:

A jury in the circuit court of Winnebago County convicted defendant James K. Santos of aggravated criminal sexual abuse (720 ILCS 5/12 — 16(d) (West 1998)) of T.K. The circuit court sentenced him to a four-year prison term. The appellate court reversed defendant’s conviction because of jury instruction error. The court also addressed an issue likely to recur on remand, and reversed the trial court’s ruling that certain evidence must be excluded pursuant to section 115 — 7 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 — 7 (West 1998)), commonly known as the “rape shield” statute. 333 Ill. App. 3d 1. We granted the State leave to appeal. See 177 Ill. 2d R. 315(a). The State admits that defendant is entitled to a new trial because of the errors in the jury instructions; the State’s only argument before this court is that the appellate court erred in reversing the trial court’s application of the rape shield statute. We reverse the appellate court in part and remand for a new trial.

BACKGROUND

Defendant does not challenge the sufficiency of the evidence on appeal. Accordingly, we will summarize the evidence adduced at trial except where greater specificity is necessary to our resolution of the legal issues.

Many of the facts surrounding the charges against defendant are undisputed. In May 1999 T.K. was 16 years old. She and defendant met at a party at the home of Angie Enna and Herbert Reaves late on May 8 or in the early morning hours of May 9. At the time Enna and Reaves were 25 and 20 years old, respectively. T.K., who had been drinking since approximately 9 p.m. on May 8, was already somewhat inebriated when she arrived at the party that night. When defendant subsequently arrived, there was no alcohol at the party, and T.K. was among the people who went with defendant to purchase more. Defendant purchased T.K. a beer at her request. After returning the other persons to the party, defendant and T.K. left again in defendant’s car.

Defendant and T.K. testified to different versions of the subsequent events at trial. Both agreed that after riding around for several hours, defendant parked the car in a remote area where the two engaged in sexual intercourse. T.K. testified that she told defendant that she was 16 years old before the two engaged in any sexual activities. She also testified that all sexual contact between her and defendant occurred without her consent and against her will. Defendant, by contrast, testified that T.K. made advances upon him and told him she was 18 years old, only revealing that she was 16 years of age when the two were already engaged in sexual intercourse. He testified that when she informed him of this fact, he immediately ceased all sexual activities with her.

The State charged defendant with criminal sexual assault (720 ILCS 5/12 — 13(a) (West 1998)) and two counts of aggravated criminal sexual abuse (720 ILCS 5/12— 16(c)(l)(ii), (d) (West 1998)). The first count of aggravated criminal sexual abuse alleged that defendant had committed an act of sexual conduct with T.K. by the use of force or threat of force. 720 ILCS 5/12 — 16(c) (l)(ii) (West 1998). The second count alleged that defendant had committed an act of sexual penetration with T.K., at a time when T.K. was between the ages of 13 and 17 and defendant was at least 5 years older than she. 720 ILCS 5/12 — 16(d) (West 1998). The jury acquitted defendant of the charge of criminal sexual assault and the charge of aggravated criminal sexual abuse involving an act of sexual conduct, but convicted defendant on the charge of criminal sexual abuse involving an act of sexual penetration. The circuit court sentenced defendant to four years’ imprisonment.

The appellate court reversed defendant’s conviction and remanded for a new trial. The appellate court held that the circuit court committed reversible error in its issues instruction to the jury. The court determined that there was sufficient evidence adduced at trial to support the defense theory that defendant had reasonably believed that T.K. was over 16 years of age. Accordingly, the appellate court held, the circuit court was required to instruct the jury that the State had the burden of proving beyond a reasonable doubt that defendant did not reasonably believe the victim to be of age. The failure to properly instruct the jury on the State’s burden of proof constituted reversible error, entitling defendant to a new trial. 333 Ill. App. 3d at 8.

The appellate court also elected to address an additional issue because it was likely to recur on remand. Before trial, defendant filed a motion in limine requesting the court’s permission to cross-examine T.K. regarding inconsistent statements she had made to the authorities. Specifically, on May 9, T.K. told medical personnel who were collecting rape kit samples that she had not engaged in sexual intercourse with anyone other than the defendant in the previous 72 hours. However, in August 1999, when DNA testing revealed that defendant could not have been the source of semen recovered from the victim, T.K. admitted to the police that she had in fact engaged in sexual intercourse with someone else on May 9. The State objected to the introduction of this evidence, contending it was barred under the rape shield statute. The trial court ruled in the State’s favor and excluded the evidence from consideration.

The appellate court held that the circuit court erred in excluding the evidence. 333 Ill. App. 3d at 9. The appellate court noted that the rape shield statute contains an exception, permitting the introduction of evidence the statute would otherwise bar where admission of such evidence is “constitutionally required.” Relying on its earlier decision in People v. Grano, the appellate court held that the circuit court should have allowed defendant to inquire regarding T.K’s statements, because “T.K.’s credibility was at issue.” 333 Ill. App. 3d at 9. The court remanded for a new trial, and directed the circuit court to permit defendant to cross-examine T.K. with her inconsistent statements.

In partial dissent, Justice O’Malley disagreed with the majority regarding the evidence the circuit court had excluded under the rape shield statute. See 333 Ill. App. 3d at 10-11 (O’Malley, J., concurring in part and dissenting in part). The dissenting justice argued that the appellate court majority erred in stating that Grano involved “prior inconsistent statement[s].” 333 Ill. App. 3d at 10 (O’Malley, J., concurring in part and dissenting in part). He also noted that, regardless, the instant case did not involve prior inconsistent statements, because the statements in question were inconsistent only with each other, not with any statement the victim had made during her in-court testimony. The dissenting justice concluded that the cross-examination was impermissible regardless of the rape shield statute, because inconsistent out-of-court statements were not a proper basis for impeaching a witness’ credibility. 333 Ill. App. 3d at 11 (O’Malley, J., concurring in part and dissenting in part).

ANALYSIS

The State concedes that the appellate court acted correctly in granting defendant a new trial based on the jury instructions. The State’s only argument before this court is that the appellate court erred in overruling the circuit court order barring defendant from cross-examining T.K. about her inconsistent statements regarding whether she had engaged in sexual activities with anyone else during the 72 hours preceding the assault. The State contends that the trial court acted correctly in excluding this evidence from the trial.

Evidentiary rulings are reviewed for abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001). A trial court abuses its discretion only when its ruling is “ ‘ “arbitrary, fanciful or unreasonable” ’ or ‘ “where no reasonable man would take the view adopted by the trial court.” ’ ” People v. Donoho, 204 Ill. 2d 159, 182 (2003), quoting People v. M.D., 101 Ill. 2d 73, 90 (1984) (Simon, J., dissenting), quoting Peek v. United States, 321 F.2d 934, 942 (9th Cir. 1963).

The rape shield statute provides in pertinent part as follows:

“In prosecutions for *** criminal sexual assault, [and] aggravated criminal sexual abuse, *** the prior sexual activity or the reputation of the alleged victim *** is inadmissible except (1) as evidence concerning the past sexual conduct of the alleged victim *** with the accused when this evidence is offered by the accused upon the issue of whether the alleged victim *** consented to the sexual conduct with respect to which the offense is alleged; or (2) when constitutionally required to be admitted.” 725 ILCS 5/115 — 7(a) (West 1998).

Thus the statute absolutely bars evidence of the alleged victim’s prior sexual activity or reputation, subject to two exceptions: (1) evidence of past sexual activities with the accused, offered as evidence of consent; and (2) where the admission of such evidence is constitutionally required.

The appellate court determined that the circuit court erred in excluding the evidence. The court relied exclusively on People v. Grano, 286 Ill. App. 3d 278 (1996). The appellate court stated that in Grano, the court had

“determined that the [rape shield] statute was not designed to preclude the admission of all evidence related to sex. Instead, the legislative intent of the rape shield statute is to exclude evidence of actual sexual history or reputation of the victim, not evidence offered for the purpose of impeachment, even when that evidence relates to sex.” 333 Ill. App. 3d at 9.

After discussing Grano, the appellate court noted that the credibility of the alleged victim, T.K., was at issue in the instant case, and concluded that “the trial court misapplied the rape shield statute as a basis for excluding the evidence of T.K.’s inconsistent statements.” We find the appellate court to have erred.

Grano does not support the appellate court’s holding in this case. In Grano, the appellate court reviewed a circuit court ruling that the rape shield statute precluded the defendant from introducing evidence that the complainant had previously falsely accused three other men of sexual assault. The court reasoned that the circuit court had erred in determining that the rape shield statute barred the introduction of this evidence because a verbal accusation was not “sexual activity.” Grano, 286 Ill. App. 3d at 288. This finding meant that the rape shield statute had no bearing on the case at all, and thus the trial court had erred in excluding the evidence.

The same is not true of the instant case. Here, although as in Grano the evidence at issue does consist of statements by the complainant, those statements clearly reveal the complainant’s “prior sexual activity.” Accordingly, the rape shield statute does come into play. Contrary to the reasoning of the dissenting justice (see 211 Ill. 2d at 417-18 (McMorrow, C.J., dissenting)), and the appellate court majority, the statute makes no exception based on the purpose for which the evidence is offered. It is of no moment to the statute’s application that defendant sought to introduce the evidence for purposes of impeachment, rather than as an explicit attack on the victim’s character. The rape shield statute absolutely bars the introduction of the evidence, unless one of the two exceptions listed in the statute is applicable.

The first exception relates only to prior sexual activity between the victim and the accused, offered for purposes of establishing a defense of consent. This exception is inapplicable in the instant case, as the prior activity revealed by the evidence in question was not between complainant and defendant. 725 ILCS 5/115 — 7(a)(1) (West 1998).

The second exception permits introduction of evidence which the statute would otherwise operate to exclude, “when constitutionally required.” 725 ILCS 5/115 — 7(a)(2) (West 1998). The evidence in question in this case is two out-of-court statements which were inconsistent with each other, but not with any statement made by the witness on direct examination. We find that the constitution did not require that this evidence be admitted.

As the dissenting justice in the appellate court noted, what defendant wished to do by introducing this evidence was to impeach the victim’s credibility with a specific act of untruthfulness. He wished to show the jury that T.K. had lied on one occasion — when she told medical personnel she had not had sexual intercourse with anyone else in the previous 72 hours — in order to support his argument that when she testified in court she was lying about what had occurred between her and the defendant. Far from being constitutionally required, specific-act impeachment is prohibited in Illinois.1 See, e.g., People v. West, 158 Ill. 2d 155, 162 (1994) (upholding trial court ruling prohibiting cross-examination regarding specific instances of untruthfulness and rejecting contention that evidence of specific acts of untruthfulness may be brought out even in cases involving children who are too young to have developed a reputation); People v. Morrow, 303 Ill. App. 3d 671, 680 (1999) (“Although the defendant’s credibility was an issue in this case, specific instances of untruthfulness are not admissible to attack a witness’s believability”); Podolsky & Associates L.P. v. Discipio, 297 Ill. App. 3d 1014, 1026 (1998) (“In Illinois a witness’s credibility may not be impeached by inquiry into specific acts of misconduct which have not led to a criminal conviction”); People v. McGee, 286 Ill. App. 3d 786, 796 (1997) (“specific instances of untruthfulness are not admissible to attack a witness’s believability”); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 608.5, at 390 (8th ed. 2004) (“[t]he credibility of any witness, including a reputation witness, may not be attacked upon cross-examination by questioning the witness concerning specific instances of her misconduct not leading to a conviction”). Accordingly, it is clear that the second exception listed in the rape shield statute is inapplicable, and the evidence was correctly excluded.

Defendant argues that the impeachment in this case is more than ordinary mere-fact impeachment, however. He claims that it is especially important that the jury hear about T.K’s untruthfulness because it occurred at the time she was reporting the crime. He argues that he is entitled to let the jury know that T.K. lied about something when she was reporting the crime, because her having done so casts doubt on everything else she said.

We reject this argument. Defendant’s argument is the same as that advanced in favor of any particular instance of untruthfulness — if the jury knew that the witness had lied on a previous occasion, the jury would be more likely to believe she was lying in her testimony regarding the facts at issue in the case. Such cross-examination is simply not permitted, because it is overly prejudicial in relation to its probative value. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 608.5, at 390 (8th ed. 2004).

Defendant’s argument here is really a contention that he was not impeaching the witness on a collateral matter. But this contention is inaccurate. “A matter is collateral if it is not relevant to a material issue of the case.” Esser v. McIntyre, 169 Ill. 2d 292, 304-05 (1996). “The test to be applied in determining if a matter is collateral is whether the matter could be introduced for any purpose other than to contradict.” People v. Collins, 106 Ill. 2d 237, 269 (1985). Whether T.K. had, unbeknownst to defendant, engaged in sexual relations with someone else is wholly unrelated to the question of whether defendant reasonably believed that T.K. was of age when the act of sexual penetration took place, which was the only controverted issue on this charge. The only reason defendant sought to inquire of T.K. about her statements to medical personnel was in order to contradict those statements with her later statements to law enforcement authorities. Thus it was, indeed, a collateral matter. This distinguishes the authority on which defendant relies wherein our appellate court has found the constitution required a defendant to be permitted to offer certain evidence which was directly relevant to matters at issue in the case, notwithstanding that it concerned the victim’s prior sexual activity. See People v. Anthony W., 324 Ill. App. 3d 181, 186-87 (2001) (evidence that complainant had sex a month before alleged assault would explain physical evidence of cleft hymen); People v. Mason, 219 Ill. App. 3d 76, 78-79 (1991) (child victim’s viewing of adult videotapes admissible to explain her sexual knowledge, which had been submitted as evidence of abuse).

The dissent characterizes the victim as having lied about a “critical fact” (211 Ill. 2d at 424) at the time she “reported” (211 Ill. 2d at 411, 424, 425, 428, 430) the crime to the “authorities” (211 Ill. 2d at 425). We note for purposes of clarification that the victim lied to an emergency room nurse about having had sexual relations with her boyfriend. There is no indication that the victim herself ever repeated this he to the police, or indeed ever directly lied to the police. Rather, the evidence is that once the police inquired of the victim, she immediately admitted to them the truth. This weakens considerably the dissent’s inference that because the victim told this lie she might also have lied to the police about having told defendant she was 16. 211 Ill. 2d at 428. Moreover, the fact that the victim told the police that she had told defendant she was 16 before they engaged in sexual activity was not referred to at trial and is thus irrelevant. Thus the victim’s “state of mind” at the time she first reported the crime is also irrelevant. What matters is whether the victim told the truth in her in-court testimony, and referring to prior bad acts in order to raise the inference that a witness is lying at trial is prohibited under Illinois law.

The dissent’s characterization that the victim lied about a fact “critical” to DNA analysis (211 Ill. 2d at 425-26) is also difficult to accept. Nothing in the record establishes that the victim’s answer to this question was critical to the analysis; to the contrary, the analysis discerned that defendant’s genetic markers were not present in the materials recovered from the victim notwithstanding the victim’s untruth.

This court has specifically held that precluding a defendant in a sexual assault trial from impeaching a complaining witness on a collateral matter does not contravene the constitution. In People v. Sandoval, 135 Ill. 2d 159, 181 (1990), the defendant admitted he had anal sexual intercourse with the complaining witness, as alleged, but claimed the encounter was consensual. During the victim’s direct examination, she testified that she had never had anal sex with anyone other than the defendant. The trial court ruled that the rape shield statute precluded the defendant from cross-examining the victim regarding the veracity of this statement. This court affirmed.

We acknowledged the defendant’s argument that the case “boil[ed] down to the jury’s determination of the credibility of the parties and he was denied the opportunity to confront the witness with what he allege[d] was a lie.” Sandoval, 135 Ill. 2d at 180. Nevertheless, we found that the allegedly untrue statement the victim had made was collateral to the only controverted issue in the case — consent on the occasion in question — and thus there was no constitutional violation in denying defendant the opportunity to attempt the impeachment. Sandoval, 135 Ill. 2d at 181 (“Even if this court were to assume that the complainant was not truthful when she testified that she had not had anal sex with others, we would not be required to reverse the verdict of the jury based on a denial of defendant’s right of confrontation. Impeachment of a witness is restricted to relevant matters; a witness may not be impeached on collateral or irrelevant matters”). Here, as in Sandoval, the defendant seeks to impugn his accuser’s credibility by showing that she lied regarding a matter collateral to the controverted issues in the case. Here, as in Sandoval, we conclude that the constitution did not require that the defendant be permitted to attempt the impeachment in question. We note that the situation is even less favorable for defendant than it was for defendant Sandoval, because in that case the false statement was made before the jury, whereas here the false statement was made outside of court.2 We find no constitutional necessity for the impeachment.

We note finally that the dissent contends that the court’s ruling on the motion in limine under review precluded defendant from informing the jury that no semen matching his genetic profile had been recovered from the victim. 211 Ill. 2d at 426. This is inaccurate. Although the circuit court did preclude defense counsel from so informing the jury, this was clearly a separate and independent ruling from the court’s ruling that defendant could not cross-examine the victim with her inconsistent out-of-court statements. We note that the motion in limine referred only to cross-examination; the other matter was raised separately during oral argument on the motion. Although both rulings required the circuit court to interpret and apply the rape shield, we see no logical or legal reason that the two rulings must either both be upheld or both reversed. Our holding is limited to the question before us: whether the circuit court was correct in precluding defendant from cross-examining the victim regarding her collateral out-of-court statements concerning her sexual history. Our opinion is not an endorsement of any other pretrial ruling by the circuit court, including specifically the court’s separate ruling barring defendant from informing the jury that no seminal material matching his genetic profile was recovered from the victim. That ruling is not before us on this appeal, the propriety of that ruling was not briefed by the parties before this court nor before the appellate court, and we accordingly express no opinion thereon.

CONCLUSION

The evidence in question revealed the victim’s “prior sexual activity.” Accordingly, the rape shield statute rendered it inadmissible. 725 ILCS 5/115 — 7(a) (West 1998). Neither of the two exceptions listed in the rape shield statute apply. Accordingly, the circuit court ruling prohibiting defendant from introducing the evidence in question was correct. We reverse that portion of the appellate court opinion which reversed this ruling, and remand for a new trial.

The judgment of the appellate court is affirmed in part and reversed in part, the judgment of the circuit court is affirmed in part and reversed in part, and the cause is remanded to the circuit court.

Appellate court judgment affirmed in part and reversed in part; circuit court judgment affirmed in part and reversed in part;

cause remanded.

Although specific acts evidence can come in under the Federal Rules of Evidence, even there such evidence is not necessarily admissible. Rather, its admissibility in any given case rests within the discretion of the trial court. Fed. R. Evid. 608(b)(1).

In Sandoval, the trial court erred in admitting complainant’s original statement that she had not had anal sex with others, but the court cured this error by instructing the jury to disregard the statement before submitting the case to the jury. Sandoval, 135 Ill. 2d at 192-93.